Codifying journalists' privilege

One piece of hotly debated legislation I did not track this session (but which particularly concerned many of our prosecutor friends), was HB 670 by Martinez-Fischer creating a qualified privilege for journalists not to testify in criminal cases. The bill was signed by the Governor last month and took effect immediately. Here's a summary of the bill from the Freedom of Information Foundation:

The law says that any body with authority to issue a subpoena cannot compel a journalist to testify or produce or disclose in an official proceeding any confidential or nonconfidential information, document or item obtained or prepared while acting as a journalist. The source of any information, or document described in the law could not be subpoenaed with some exceptions.

It provides that, after notice and an opportunity to be heard, a court may compel testimony or require the journalist to produce any information or document or the source if the person seeking it makes a clear showing that: all reasonable efforts have been made to get the information from an alternative source, the subpoena is not overbroad, unreasonable or oppressive and limited to the verification of published information, and the subpoena is not being used to obtain "peripheral, nonessential or speculative information."

The information has to be relevant and essential to a case. It must be central to the investigation or prosecution of a criminal case based on something other than the assertion of the person seeking the subpoena and reasonable grounds exist that a crime has been committed.

A journalist would have to testify if he or she were an eyewitness to a crime. Testimony would be required if the source was someone who had participated in a violent crime and the person seeking the testimony had exhausted reasonable efforts to get the information from some other source. Testimony would be required if it was reasonably necessary to stop or prevent reasonably certain death or substantial bodily harm.

An application for a subpoena would have to be signed by a district attorney or county attorney. Timely notice would be required and an order would have to include "clear and specific findings" on which the court relied in issuing the court order.

House Speaker Tom Craddick allowed a similar bill to come to a vote in 2007, but it was late in the session and a Republican legislator shot it down on a technical point of order.

Those caveats seem to address all of the knee-jerk critiques that the bill will hinder prosecutors from securing convictions. The biggest limitation may be to say prosecutors can only seek journalists' files for the "verification of published information," which keeps the state from undertaking fishing expeditions in journalists' story files.

The bill as written would apply to many bloggers, by my reading, when they're functioning in a journalistic capacity, categorizing as journalists those who are:

earning a significant portion of the person's livelihood by obtaining or preparing information for dissemination by a news medium or communication service provider; or ... serving as an agent, assistant, employee, or supervisor of a news medium or communication service provider.

I am arguably both an agent and a supervisor of this blog, for example, which would be categorized as a "news medium" under the bill's definition section.

At the end of the day, though, I doubt this bill will make a big difference as a practical matter. Most Texas cases involving journalists held in contempt for refusing to supply testimony have come in murders or other serious cases. In such instances, HB 670 doesn't forbid subpoenaing journalists to testify, it just creates a few minimalist hoops the state must jump through (essentially performing due diligence) before it can force them to do so. We'll have to wait and see whether, in practice, the legislation functionally provides journalists significant new protections.